Making of a German Constitution : a Slow Revolution

Undermining Absolutism • 159Compromise on procedural reform was particularly dangerous for anyone whowanted to sustain the monarchical arrangements, because it installed the very infrastructurethat liberals needed to make their sociopolitical values stick in society.Even if legislation was not perfect, this could be adjusted in the courts, and, sincelegal professionals were overwhelmingly liberal, the new courts were stacked intheir favor. This was also a danger where bourgeois lay persons sat on courts, eitheras Schöffen or as jurors. Legislation might not pass legislatures in ideal liberal form,but, as a result of liberal procedural reform, it could be appropriately adjusted in thecourts. There was also a fresh round of founding new legal journals after the majorreforms at the national level. On the whole, however, liberals did not miss a beat inpushing through their social and political programme where constitutional transformationwas involved. The later procedural legislation in 1898 even reformed militaryjudicial practices, securing liberal reforms here as well. For certain groups in society,however, these were hardly courts of equal opportunity. If you were a nobleman, awoman or a member of the lower strata you might find it tough to get a fair trial.This was no longer noble patrimonial justice, but arguably it had become a system ofexclusive bürgerliche justice, which demanded conformity to legislated standards.The reforms in the area of private law made considerable inroads into the structureof Central European society at the state level before unification. These reforms allowedliberals to secure many of the basic rights they had sought during the 1848 Revolutionand that were expressed in the constitutional document of 1849. Moreover, proceduralreform suggested a transfer in judicial authority, which undermined the strength ofPrussian bureaucratic absolutism. After unification, when Bismarck embarked on hispolicy of compromise, liberals seem to have had great success in securing these reformsat the national level. While the Constitution of 1871 did not contain provisionson basic rights, liberals essentially achieved these basic rights through the introductionof supplementary measures of private law. As Wieacker wrote, by the late nineteenthcentury liberals gained ‘the upper hand in areas of land law, family property and succession,so crucial for the whole social order’. 195 By the time the national reforms Ihave discussed here went into effect, work on the BGB was underway. The NationalLiberals Eduard Lasker, Johannes Miquel and later Gottlieb Planck had procured anamendment to Article 4, Paragraph 13 of the Constitution in 1873, at the height ofliberal power in the Reichstag. This gave parliament power to legislate civil law, generally.Key figures in this enterprise were from Hanover and all had been active in otherlegal forums. They had all sat on the Reichsjustizgesetze commission at some point,and they were veterans of the mid-century political conflicts.Notes1. Anton Christ, in Verhandlungen der Germanisten zu Lübeck (1847), p. 213.2. H. Beck, Origins of the Authoritarian Welfare State in Prussia: Conservatives,Bureaucracy and the Social Question 1815–70 (1995), p. vii.